D'Onofrio v Mother of God with Eternal Life

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[*1] D'Onofrio v Mother of God with Eternal Life 2018 NY Slip Op 28214 Decided on July 9, 2018 Supreme Court, Westchester County Ruderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 9, 2018
Supreme Court, Westchester County

Maria J. D'Onofrio, Plaintiff,

against

The Mother of God with Eternal Life and Pasqualina Fontana, Defendants.



52525/2018



For Plaintiff:

Bernard A. Edelstein, Esq.

315 Westchester Avenue

Port Chester, NY 10573

(914) 939-3606

For Defendants:

Michael W. Holland, Esq.

421 Willis Avenue

Williston Park, NY 11596

(516) 248-2655
Terry J. Ruderman, J.

The following papers were considered in connection with the motion by defendants for an order dismissing the amended verified complaint pursuant to CPLR 3211(a)(5) and (7) and CPLR 3016(b):



Papers Numbered

Notice of Motion, Affirmation, Exhibit A, and Memorandum of Law 1

Affirmation and Affidavit in Opposition, and Memorandum of Law 2

Reply Memorandum of Law 3

In this action, commenced on February 22, 2018, plaintiff seeks to rescind a number of transactions in which she deeded real property, or turned over valuable personal property, to defendants. Plaintiff asserts that defendant The Mother of God With Eternal Life is a New York [*2]corporation organized under section 402 of the Not-for-Profit Corporation Law on or about April 25, 2011, with defendant Pasqualina Fontana as its President, Treasurer and Director.

The fraudulent misrepresentation alleged in the complaint is as follows:

" Commencing on or about 2007 and continuously thereafter through 2017 defendant Fontana, claiming to be a faith healer, fraudulently stated and represented to plaintiff that if plaintiff did not do as defendant, Fontana, instructed her to do, i.e. turn over sums of cash, personal properties and real properties to defendant Fontana and/or defendant Mother of God with Eternal Live [sic] that plaintiff would suffer grave and fatal spiritual consequences including specifically that (a) 'God does not forgive! Pay or you (will) die from torment of the souls that want (to) get the money ...'; (b) that 'Enemy spirits would come' if plaintiff did comply with defendant's directives; and (c) that I must '...give up the property for God, Heaven is on Earth and He wanted a place to stay on earth, and if I did not grant His wishes, I would be punished severely.' "

Plaintiff asserts that the foregoing false statements were made by defendant Fontana with the intent of defrauding plaintiff and inducing plaintiff to transfer her real properties, sums of money and personal property to defendants.

The duress and undue influence claims are supported in the complaint by allegations in the complaint that:

"(a) Defendant forced plaintiff to reside in small and unsuitable rooms or apartments in the properties aforesaid or in defendant Fontana's property in Yonkers, NY. Defendant was forced to move between these properties over twenty-five occasions from 2007 through 2017. Plaintiff was forced to sleep in a dining room without a door for privacy."(b) Defendant Fontana isolated plaintiff from plaintiff's family leaving plaintiff with little or no contact with persons other than defendant Fontana or her daughters."(c) Defendant Fontana was verbally, emotionally and physical abusive towards plaintiff on numerous occasions calling plaintiff a 'dog' or "puppy' and telling her to 'jump off a bridge.'"(d) On or about June 27, 2015 defendant Fontana had thrown garden scissors at [p]laintiff's fee[t] two times."(e) On or about April 18, 2017 at 33 Midland Ave., White Plains, NY[,] defendant Fontana started to choke the [p]laintiff."(f) Defendant Fontana threw out the personal property of the [p]laintiff including family photographs and objects [p]laintiff had received from her mother."

Additional allegations in support of her complaint are provided by plaintiff in an affidavit submitted in opposition to defendants' dismissal motion. They include,

* "In or about 2007 I had been in an abusive marriage with my former husband for many years and I was deeply depressed and vulnerable."* "I had known Defendant Pasqualina Fontana ("Fontana") through church. Fontana represented to me that she was a faith healer."* "I am Catholic and I am deeply religious and did not believe in divorce. Nevertheless, Fontana repeatedly told me that she had received 'messages' that my only living child, my son, would die if I remained close to him and that my husband would kill me."* "Fontana repeatedly urged me to seek a divorce, leave my family and move into a basement apartment in her home in 28 College Place, Yonkers, NY at a rental of $1,200 per month and I did so. She repeatedly told me that my husband would find me and kill [*3]me if I would have resided with my mother on Long Island."* "Fontana took some of my jewelry and watches from me claiming that they would affect my heart beat and that they were full of bad spirits which would attack me. In or about 2008 Fontana had her two friends drive me to New York City in order to sell some other of my jewelry and the $10,000 cash proceeds and the remaining jewelry was taken from me by Fontana which she later admitted to me.* "Fontana refused to allow me to drink water claiming that it was full of evil spirits. I existed by drinking Ensure, which she made me drink, and eventually I was hospitalized in 2010 in a diabetic coma."* "She coerced me to name her as the beneficiary on an 'in trust for' account at HSBC bank with approximately $100,0000 as this was the safest way to protect the money from evil spirits."* "I was totally under Fontana's control and evil spell in my weakened emotional, psychological and physical state and I was afraid of her and felt that I had to do whatever she demanded or else I would suffer evil spiritual consequences."* "Fontana kept me under her evil spell and constantly told me that terrible evil things would happen to me should I not abide by her directions and that I should not speak with anyone."

The transfers of real property that plaintiff now seeks to rescind are: (1) a deed executed by plaintiff in favor of defendant Mother of God with Eternal Life on December 28, 2011 to real property located at 203 Gotham Avenue, Elmont, New York; (2) a deed executed by plaintiff in favor of defendant Mother of God with Eternal Life on January 12, 2012 to real property located at 227 Franklin Street, Elmont, New York; (3) deeds executed on or about January 12, 2012 by plaintiff in favor of defendant Mother of God with Eternal Life for unimproved real properties designated as Lots 11 & 12 in Block No.358 on the map of Inverness Highlands West, Subdivision, also known as 04025 & 04011 S. Alpine, Inverness, Florida; and (4) a deed executed by plaintiff on or about January 6, 2014 to transfer to Mother of God with Eternal Life real property located at 33 Midland Avenue, White Plains, New York.

Defendants now move to dismiss the complaint, arguing that the causes of action based on fraud and undue influence were not commenced within six years of their accrual, and are therefore barred by the statute of limitations (CPLR 213[8]). Defendants further contend that the complaint fails to plead all of the elements of fraud, in particular, a misrepresentation of a material existing fact or justifiable reliance. Additionally, defendants assert that the allegations fail to plead sufficient facts to establish a claim for undue influence. Plaintiff opposes.

Analysis

CPLR 3211(a)(5) — Statute of Limitations

Pursuant to CPLR 213(8), a cause of action for fraud must be brought within "six years from the date the cause of action accrued or two years from the time the plaintiff . . . discovered the fraud, or could with reasonable diligence have discovered it" (Monteleone v Monteleone, ___ AD3d ___, 2018 NY Slip Op 04317 [2d Dept June 13, 2018]). "A cause of action based upon fraud accrues, for statute of limitations purposes, at the time the plaintiff possesses knowledge of facts from which the fraud could have been discovered with reasonable diligence" (Coleman v Wells Fargo & Co., 125 AD3d 716 [2d Dept 2015]). Causes of action alleging undue influence or duress are similarly covered by the six-year statute of limitations (see Pearl-Wick Corp. v Chase Manhattan Bank, N. A., 125 AD2d 249, 251 [1st Dept 1986], citing CPLR 213 [*4][1]) .

Plaintiff concedes that almost all of the real property transfers for which she seeks rescission occurred more than six years before this action was commenced; only the deed executed by plaintiff on or about January 6, 2014 to transfer 33 Midland Avenue in White Plains, New York was within the statute. However, plaintiff takes the position that the statute of limitations must be tolled, due to her claimed physical, emotional and psychological illnesses which affected her judgment and understanding to protect her affairs for a period of time beginning before the transfers and continuing up to the commencement of this action.

CPLR 208 provides for the tolling of the statute of limitations if the plaintiff "is under a disability because of infancy or insanity at the time the cause of action accrues." "[T]he statute itself provides no definition of the term 'insanity'" (McCarthy v Volkswagen of America, Inc., 55 NY2d 543, 547 [1982]). "[T]he legislative history of CPLR 208 indicates that the Legislature intended the toll for insanity to be narrowly interpreted" (id., citing Fifth Rep of NY Adv Comm, NY Legis Doc, 1961, No. 15, p 43). In McCarthy, the Court declined to employ the insanity toll where the plaintiff claimed that the cause of his belated commencement of his action against the manufacturer of his vehicle, which burst into flames when it struck a utility pole, was "post traumatic neurosis," manifesting itself in an inability to confront the memory of his accident.

Since the McCarthy decision, a number of psychological conditions have been allowed to serve as a basis for the insanity toll. Uncontradicted testimony of a psychiatrist to the effect that the plaintiff suffered from paranoid schizophrenia and borderline personality disorder, with symptoms of hallucinations and impulsive suicidal behavior, necessitating multiple hospitalizations, medication, and psychotherapy, was found to justify the application of the insanity toll (see Cairl v County of Westchester, 150 AD2d 749 [2d Dept 1989]). In addition, in Barnes v County of Onondaga (65 NY2d 664 [1985]), the Court found sufficient evidence of insanity in the uncontradicted testimony from the plaintiff's psychiatrist that the plaintiff suffered a major depressive disorder more serious than a neurosis, as a result of which she lacked an overall ability to function and did not know what to do. In Wheeler v State (104 AD2d 496 [2d Dept 1984]), where evidence was presented that the plaintiff suffered from bipolar disorder, the Court reversed a dismissal on timeliness grounds, holding that "a toll may be available" under Court of Claims Act §10(5) and CPLR 208.

Notably, all of these cases include medical or psychiatric evidence. No case has been cited, or located by this Court, in which a finding of insanity to toll the statute of limitations under CPLR 208 has been made without such support. Yet, instead of submitting comparable evidence, plaintiff argues that she need only prove an inability to protect her affairs, citing Hurd v Allegany County (39 AD2d 499 [4th Dept 2001]), and that moreover she need not prove the disability prior to trial, citing Lynch v Carlozzi (284 AD2d 865 [3d Dept 2001]). However, in Hurd, although the Fourth Department discussed authorities from other jurisdictions holding that the definition of "insanity" for purposes of tolling statutes is "when the disability is of such a nature as to show [the plaintiff] unable to manage his business affairs," under New York law, that phrase is just one aspect of the definition. And, Lynch does not stand for the proposition that the party claiming insanity has no obligation to make an evidentiary showing. There, when the defendant moved to dismiss on statute of limitations grounds, the plaintiff opposed by, inter alia, submitting an affidavit from a board-certified psychiatrist and neurologist "who opined that plaintiff suffered from a mental disability following the accident and that such condition prevailed at the time of his execution of the release," thereby "demonstrating the existence of a [*5]triable issue of fact that he suffered from such mental disability sufficient to toll the limitations period" (284 AD2d at 868).

Plaintiff's bare assertion that she was hospitalized from August 19, 2017 through September 13, 2017, and that she has been receiving extensive psychiatric and psychological counseling, fails as a basis to establish grounds for tolling the statute of limitations on grounds of insanity, particularly since it does nothing to establish her condition during the period in which she seeks to toll the statute. Plaintiff is left relying entirely on her own assertions, "I was totally under Fontana's control and evil spell in my weakened emotional, psychological and physical state and I was afraid of her and felt that I had to do whatever she demanded or else I would suffer evil spiritual consequences" to establish her mental status. However, asserting that you were convinced by another person's claim of supernatural powers, is not the equivalent of a showing of insanity.

Plaintiff further relies on a claim of duress to toll the statute of limitations, relying on case law holding that "when duress is part of the cause of action alleged, the limitations period is tolled until the termination of the duress. Although such duress does not prevent the accrual of the cause of action, it tolls the running of the limitations statute because the offensive conduct is regarded as a continuous wrong" (Baratta v Kozlowski, 94 AD2d 454, 459 [2d Dept 1983]). However, even assuming plaintiff's allegations to be true and viewing them in a light most favorable to her, plaintiff has failed to specify any particular acts by Fontana that would constitute duress such as would toll the limitations period.

Duress is established where the evidence shows that "the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his free will" (Austin Instrument, Inc. v Loral Corp., 29 NY2d 124, 130 [1971]). To be wrongful, a threat of action must be one from which the person sought to be influenced is entitled to be free (see Kazaras v Manufacturers Trust Co., 4 AD2d 227, 237 [1st Dept 1957]). A threat that evil spirits will take action against one is not the type of wrongful threat contemplated by these requirements.

In the absence of any evidentiary materials other than plaintiff's own self-serving assertions to establish her proposed insanity toll under CPLR 208, and in the absence of a viable evidentiary basis for her claim of duress, the six-year statute of limitations bars plaintiff's claims of rescission for all transactions that occurred before February 22, 2012.

CPLR 3211(a)(7)

As to the remaining transaction, the January 6, 2014 transfer of the White Plains property, defendants also contend that the allegations of the amended verified complaint fail to state a cause of action on which relief may be granted.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true [and] accord plaintiffs the benefit of every possible favorable inference" (see Leon v Martinez, 84 NY2d 83, 88 [1994]). Accordingly, for purposes of this discussion, it will be accepted that the factual assertions of the complaint are true, to the extent those facts fall within the six-year limitations period.

Fraud

As to the remaining challenged transaction, the complaint fails to state a cause of action for fraud. "The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages" (Cadet-Duval v Gursim Holding, [*6]Inc., 147 AD3d 718, 719 [2d Dept 2017]). The relied-upon misrepresentations, namely, assertions that defendant told plaintiff that if she did not turn over her property to defendants, plaintiff would suffer "grave and fatal spiritual consequences," including non-forgiveness or severe punishment by God or enemy spirits, and torment, cannot be accepted or treated by this Court as a "material misrepresentation of an existing fact." Even accepting such a statement as valid, it would still not qualify as a statement of existing fact; rather, it would constitute prediction of future events, and as such it cannot form the basis for a fraud cause of action (see SRG Partners v Asch, 270 AD2d 4, 4-5 [1st Dept 2000]). "[A] prediction of something which is hoped or expected to occur in the future will not sustain an action for fraud" (Chase Invs. v Kent, 256 AD2d 298, 299 [2d Dept 1998]).

Additionally, "[t]o prevail on a claim of fraud, a plaintiff must show that [she] actually relied on the purported fraudulent statements and that [her] reliance was reasonable or justifiable" (KNK Enters., Inc. v Harriman Enters., Inc., 33 AD3d 872, 872 [2d Dept 2006]). This Court cannot hold that plaintiff was reasonable to rely on those alleged statements, or that it was objectively justifiable for her to do so. Plaintiff's complaint has therefore failed to state a cause of action for fraud.

Undue Influence

Undue influence consists of "a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the [actor] to do that which was against [her] free will and desire, but which [she] was unable to refuse or too weak to resist" (Children's Aid Soc. v Loveridge, 70 NY 387, 394 [1877]). It is typically applied in estate matters, where a challenge is brought to set aside the decedent's pre-death transactions or bequests based on a claim that undue influence was used on the decedent or testator (see e.g. Matter of LoGuidice, 186 AD2d 659 [2d Dept 1992] [lease executed by an uncle in favor of his nephew was set aside after the uncle's death, based on evidence establishing that the nephew engaged in undue influence]). Similarly, it has been used in the context of guardianship proceedings brought under Mental Hygiene Law Article 81 to set aside a deed executed by an incapacitated person (see Matter of Nurse, 160 AD3d 745 [2d Dept 2018] [incapacitated person conveyed a 50% ownership interest in his residential property to his stepson; the court determined that the AIP was incompetent at the relevant time and that the deed was the product of undue influence]; see generally Kristie Rearick, The Facts and Misconceptions Between Undue Influence and Mental Capacity In New York, NYLJ, July 9, 2018 at 3, col 1).

It is unusual to find the theory of undue influence applied in other contexts. Indeed, it has been held that "[t]here is no substantive cause of action for duress and undue influence [because] '[d]uress' is a defense to a breach of contract action and 'undue influence' is a ground for invalidating a will" (see Nice v Combustion Eng'g., 193 AD2d 1088, 1089 [4th Dept 1993]). Nonetheless, several First Department cases have accepted the premise that a contract may be set aside based on a plaintiff's claim that he or she was, at the time, the victim of undue influence.

For instance, in Weinberg v Sultan (142 AD3d 767 [1st Dept 2016]), where the plaintiff sought to unwind a sale of her property she had entered into, her affirmative cause of action for undue influence was dismissed, albeit not because it is an improper cause of action, but because she "failed to plead the fraud and undue influence claims with sufficient particularity, as required by CPLR 3016 (b)" (id. at 769). In Kazaras v Manufacturers Trust Co., (4 AD2d 227 [1st Dept 1957], supra), in which the plaintiff sought to set aside a trust indenture she had executed, [*7]relying on theories of fraud, duress and undue influence, the complaint was dismissed based on the Court's determination that the facts did not satisfy the requirements of those theories rather than on a rejection of the causes of action for fraud and undue influence.

Finally, in Robinson v Day (103 AD3d 584 [1st Dept 2013]), the plaintiff sought to rescind certain assignments and transfer agreements he executed, on grounds that, inter alia, he was fraudulently induced by the defendant to enter into them, and they were the product of undue influence. There, because the court found that the parties had been romantic companions for 14 years, "their relationship was one of trust and confidence," so that the burden shifted to the defendant to prove the transaction to have been fair and free from undue influence (id. at 585-586).

Once it is accepted that a cause of action to rescind an inter vivos gift may be brought based on undue influence, the court must address whether the allegations of the complaint are sufficient to state the cause of action. "On a motion to dismiss pursuant to CPLR 3211, . . . [w]e accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

"Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another" (Matter of Burke, 82 AD2d 260, 269 [2d Dept 1981]).

'It must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the [donor] to do that which was against [her] free will and desire, but which he was unable to refuse or too weak to resist. It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear'

(id., quoting Children's Aid Soc. v Loveridge, 70 NY at 394-395).

"Normally, the burden of proving such influence rests with the party asserting its existence" (Feiden v Feiden, 151 AD2d 889, 891 [3d Dept 1989], citing Allen v La Vaud, 213 NY 322 [1915]). "However, if a confidential relationship exists, the burden is shifted to the beneficiary of the transaction to prove the transaction fair and free from undue influence" (Feiden, citing Howland v Smith, 9 AD2d 197, 199 [3d Dept 1959], affd 10 NY2d 754 [1961]; see also Matter of Mildred M.J., 43 AD3d 1391, 1392-1393 [4th Dept 2007]).

Nothing in plaintiff's complaint explicitly asserts that her relationship with defendant Fontana was one of trust and confidence. Nevertheless, a number of New York cases hold that relationships between individuals and their "spiritual advisors" may involve trust and confidence. For instance, in McClellan v Grant (83 App Div 599, 600 [4th Dept 1903]), the Court remarked that "[t]he authorities are a unit in condemning the conveyance or transfer of property from a person to his attorney, guardian or spiritual adviser, and presume a conveyance of that character was the result of an undue advantage exercised by the beneficiary (id. [emphasis added], citing Marx v McGlynn, 88 NY 357, 370, 371 [1882]; Barnard v Gantz, 140 [*8]NY 249, 257 [1893]; Ten Eyck v Whitbeck, 156 NY 341, 353 [1898]; see generally C.S. Patrinelis, Annotation, Undue Influence in Nontestamentary Gift to Clergyman, Spiritual Adviser, or Church, 14 ALR2d 649). In particular, in Marx v McGlynn (88 NY at 371), the Court of Appeals specifically mentioned priests and "religious advisors" in referring to "the presumption that undue influence has been used." Although the foregoing cases are more than a century old, they have continued to be cited with approval in recent years (see e.g. Matter of Eastman, 63 AD3d 738 [2d Dept 2009]; Matter of Connelly, 193 AD2d 602 [2d Dept 1993]).

Plaintiff's view of Fontana as a faith healer and spiritual guide, and of herself as "totally under Fontana's control" in a "weakened emotional, psychological and physical state," creates the possibility that a claim against Fontana and, by extension, the organization that she used as the repository of donations to her, may be found to have the burden of disproving that no undue influence was used in the January 6, 2014 deed transferring the real property located at 33 Midland Avenue, White Plains, New York. Since we must "accept the facts as alleged in the complaint as true accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d at 87-88), the allegations are sufficient to preclude the dismissal of the undue influence claim with regard to the January 6, 2014 deed to the White Plains property.

Accordingly, it is hereby

ORDERED that defendant's motion pursuant to CPLR 3211(a)(5) and (7) for an order dismissing the complaint is granted in part, and denied to the extent it challenges the January 6, 2014 deed to the real property located at 33 Midland Avenue, White Plains, New York on grounds of undue influence, and it is further

ORDERED that the parties are directed to appear in the Preliminary Conference Part on Monday, August 27, 2018 at 9:30 a.m., in the Westchester County Courthouse located at room 811, 111 Dr. Martin Luther King Jr. Boulevard, White Plains, New York, 10601.

This constitutes the Decision and Order of the Court.



Dated: July 9, 2018

White Plains, New York

HON. TERRY JANE RUDERMAN, J.S.C.